Helsper, McCarty & Rasmussen, P.C. Law Firmhttp://lawinsd.com
Experienced Attorneys Serving South DakotaFri, 18 May 2018 16:11:52 +0000en-UShourly1https://wordpress.org/?v=5.0.3http://lawinsd.com/wp-content/uploads/2016/03/cropped-HMR-Text-01-1-32x32.jpgHelsper, McCarty & Rasmussen, P.C. Law Firmhttp://lawinsd.com
3232Can Your Record Be Sealed?http://lawinsd.com/can-record-sealed/
Wed, 17 Jan 2018 17:44:32 +0000http://lawinsd.com/?p=839If you are facing a criminal charge, whether it is a misdemeanor or a felony, you are probably wondering if this will stay on your record forever. In South Dakota, one option that is available to Defendants who wish to have their record sealed is a suspended imposition of sentence (SIS). A suspended imposition of…

]]>If you are facing a criminal charge, whether it is a misdemeanor or a felony, you are probably wondering if this will stay on your record forever. In South Dakota, one option that is available to Defendants who wish to have their record sealed is a suspended imposition of sentence (SIS).

A suspended imposition of sentence seals your criminal conviction, and acts as an order of probation without a conviction. South Dakota recently changed the law and now allow people to be eligible for one SIS for a misdemeanor offense and one SIS for a felony offense. In order to use a felony SIS, you may not have any prior felony convictions here or in any other State.

It is important to know a few things about suspended impositions of sentences:

Sentencing is solely in the discretion of the Judge and the Judge will determine whether or not you are a good candidate to receive a SIS;

If you have already been convicted of a crime, you have 2 years from the date of sentencing, to ask the Judge to modify your sentence and grant a SIS in order to seal your record;

It will not protect the revocation of a commercial driver’s license;

There are certain offenses that are not eligible for a suspended imposition of sentence.

The purpose of a suspended imposition of sentence is to allow a first-time offender a chance to avoid the stigma of a conviction on his or her record. If you have pending criminal charges or have been convicted of a crime less than two years from the date of conviction, you might be eligible for a suspended imposition of sentence.

If you are curious about whether you qualify for a suspended imposition of sentence, contact the lawyers at Helsper, McCarty & Rasmussen, P.C. today to discuss your case.

]]>How do I pay the Nursing Home?http://lawinsd.com/pay-nursing-home/
Wed, 23 Aug 2017 16:26:49 +0000http://lawinsd.com/?p=820Nursing home care is expensive. Everybody knows it. Typical full-time, institutional care can cost between $60,000 and $100,000 per year, and costs continue to go up every year. Do you or your parents have a million dollars saved away to pay for five years of nursing home care? Do you have enough saved up for…

]]>Nursing home care is expensive. Everybody knows it. Typical full-time, institutional care can cost between $60,000 and $100,000 per year, and costs continue to go up every year. Do you or your parents have a million dollars saved away to pay for five years of nursing home care? Do you have enough saved up for ten years? As life expectancy rises and medical science advances, this topic needs to be addressed.

If you or your parents have worked to build a business, long term care planning is essential. The objective of a good long term plan is to minimize the financial impact and burden of long term care on loved ones. If you have long term care concerns, it is usually better to transition a family business at retirement, not by will. The decisions involved are not easy, and involve significant weighing of risks and objectives.

The medicaid rules regarding long term care public assistance are complicated. The objective is to ensure that public funds are not used to pay nursing home bills for people who can afford to pay their own way. The unfortunate part is that the rules are strict enough that some people who actually have no oney wind up relying on their children to pay their bills. In other situations, the spouse of an individual who needs long term care becomes quickly impoverished due to long term care.

The first rule to understand is that no one can qualify for LTC assistance with more than $2,000 in countable assets. The answer to whether your specific assets are countable depends on your specific circumstances, which is why legal guidance is important. Sometimes individuals have assets that they don’t even know that they have, which can lead to a disqualification or even a penalty. Planning up front can prevent this from happening, which can save family members tens or even hundreds of thousands of dollars. The other situation that can arise is where the department of social services makes a determination that requires a hearing to resolve. DSS decisions are highly time sensitive, and hearings require an understanding of the rules and which evidence will be the most persuasive to an administrative law judge.

]]>Overtime Overhaul: UPDATEhttp://lawinsd.com/overtime-overhaul-update/
Wed, 30 Nov 2016 17:48:09 +0000http://lawinsd.com/?p=703A last minute development has changed the way the entire country is thinking about handling overtime. In my last blog post, I described how some new rules from the Federal government issued in May were set to take effect on December 1. A Texas Federal District judge issued an order preventing these rules from taking…

]]>A last minute development has changed the way the entire country is thinking about handling overtime.

In my last blog post, I described how some new rules from the Federal government issued in May were set to take effect on December 1. A Texas Federal District judge issued an order preventing these rules from taking effect as expected on December 1, 2016. The order is not the final word, though. It is simply a temporary halt until a final decision issues on whether the change is legal.

The authority of Congress and the President is limited by the Constitution. In addition,the authority of the Department of Labor is limited by the legislation, such as the Fair Labor Standards Act. Twenty one states and a number of businesses, collectively challenged the rule. One argument is that the change violates the Tenth Amendment. Another argument is that the interpretation of the underlying law, which appears to absolutely exclude certain kinds of employees based on their duties from overtime requirements. Although the agency has authority to describe which duties are included, the Court reasoned that it lacked the authority to broadly categorize duties based on salary level. Finally, the law is indexed to the lowest waged employees in the country, without notice and an opportunity to comment, which is generally required.

The Texas Federal Court agreed that at least one of the arguments may hold water and prevented the rule from going into effect nationwide. Only time will tell if the rule survives judicial scrutiny. Some businesses are moving forward with changes, or have already made them. Other businesses plan to wait and see. You may wish to contact a lawyer to discuss the best course of action for you. Helsper, McCarty and Rasmussen has experience advising businesses on employment law and overtime matters.

Source: The judge’s opinion (PDF hosted by the American Bar Association)

]]>Understanding Expungement and Pardons in South Dakotahttp://lawinsd.com/understanding-expungement-pardons-south-dakota/
Sun, 27 Nov 2016 16:03:19 +0000http://lawinsd.com/?p=701It is important to understand the difference between an expungement and a pardon. South Dakota has legal processes that allow an individual charged with a crime or convicted of a crime to have that charge or conviction removed from their criminal history. It is important to understand whether your situation requires an expungement or a…

]]>It is important to understand the difference between an expungement and a pardon.

South Dakota has legal processes that allow an individual charged with a crime or convicted of a crime to have that charge or conviction removed from their criminal history.It is important to understand whether your situation requires an expungement or a pardon. The process of requesting either are very different and failure to correctly follow the right process can be time consuming and expensive.

In South Dakota, an expungement is the legal process by which an arrest can be removed from an individual’s criminal record. There are only specific situations when an arrest can be removed from one’s record, which the attorneys in our office are familiar with and have experience handling.

Having your arrest expunged would prevent employers, schools or the general public from being able to learn about an arrest through a background check. An expungement does not prohibit law enforcement from having access to prior criminal records nor does an expungement imply the physical destruction of records.It is simply the ability to have an arrest, not resulting in a conviction, removed from one’s criminal history.

A pardon is the legal process by which an individual seeks to remove a conviction from their criminal record.Making the request for a pardon can involve a lengthy process as one has to navigate through the South Dakota Board of Pardons and Parole before the request can be presented to the governor. Only the Governor of South Dakota can decide whether an individual will receive a pardon.Not all convictions qualify for a pardon but the attorneys at Helpser, McCarty & Rasmussen, can help you determine if your case qualifies as they assist you in the pardon process.

If you have an arrest or conviction on your record and it is impeding your ability to find employment, or it is causing other problems for you, you should consider exploring your legal options today and let our experienced lawyers guide you through the legal process that best meets your situation.

]]>Overtime Overhaulhttp://lawinsd.com/overtime-overhaul/
Thu, 26 May 2016 02:42:34 +0000http://lawinsd.com/?p=564Last Wednesday, May 18, 2016, the US Department of Labor provided some new rules that expand overtime pay eligibility for certain employees who aren’t currently required to get overtime. The rules become effective on December 1, 2016, and are estimated to impact over 9,000 South Dakotans. Do these rules apply to your business or employees?…

]]>Last Wednesday, May 18, 2016, the US Department of Labor provided some new rules that expand overtime pay eligibility for certain employees who aren’t currently required to get overtime. The rules become effective on December 1, 2016, and are estimated to impact over 9,000 South Dakotans. Do these rules apply to your business or employees?

Most employers are familiar with the requirement to pay certain workers time and a half for putting in OT. Certain salaried employees are also required to be paid overtime. The current rule requires that many salaried employees making less than $23,660 receive time and a half pay. The new rules nearly double that annual salary ceiling to $47,476. Employees under that new annual salary ceiling will require overtime pay after the rules go into effect. There are several exceptions to that rule. For example, most farmworkers are exempt.

Some salaried employees who make more than $47,476 are also required to receive extra pay. For these employees, the nature of their primary duties can make all the difference. The rules are complicated, and there are there no straightforward, hard-and-fast rules about who may or may not be exempt from overtime pay. The answer to the question of whether a salaried employee should get overtime pay depends on the facts and circumstances of each employee’s work situation.

Learn which of your employees need to get overtime pay

Don’t get surprised when the rule takes effect on December 1. Because the rules are complicated, the answer to which of your employees should get OT is not always easy to answer. Time is short before the new rules take effect. Consider contacting an attorney to determine which, if any, of your salaried employees will be required by federal law to receive additional pay.

]]>Restraining orders: Do I need a lawyer?http://lawinsd.com/protection-order-hearing/
Sat, 02 Apr 2016 20:45:08 +0000http://lawinsd.com/?p=462South Dakota allows domestic violence or stalking victims to get protection orders, sometimes called restraining orders. The system often succeeds in protecting potential victims. Unfortunately, the process can be abused. One recent case illustrates how a lawyer protected the integrity of the hearing process. In Turner v. Belman, a recent Iowa protection order case, Ms.…

]]>South Dakota allows domestic violence or stalking victims to get protection orders, sometimes called restraining orders. The system often succeeds in protecting potential victims. Unfortunately, the process can be abused. One recent case illustrates how a lawyer protected the integrity of the hearing process. In Turner v. Belman, a recent Iowa protection order case, Ms. Turner accused Mr. Belman of domestic assault. Often, judges issue temporary orders upon request. Then the judge schedules a hearing to figure out whether the domestic violence actually happened. In this case, Ms. Turner requested a temporary order from the judge, which was granted. The judge scheduled the court hearing for about a week later.

Mr. Belman went to the hearing to deny the accusation and defend himself. Depending on the circumstances, permanent protection orders can have long-reaching effects. They impact a person’s daily life, livelihood, relationships, and reputation. They can result in unexpected criminal charges and completely change the course of a divorce or custody case. In some cases, protection orders will result in the loss of Second Amendment gun rights. Protection orders should be taken very seriously and respectfully.

At the hearing in the Turner case, the judge told everyone that they would only get fifteen minutes. Each would get seven and a half minutes to present their case or defense. Ms. Turner offered fifty pages of emails and text messages as an exhibit. Obviously, it takes more than seven minutes to carefully read through all those pages. Nevertheless, following the brief hearing, the judge entered a permanent order of protection.

And that likely would have been the end of it. But Mr. Belman’s attorney made a motion to the judge about the time limit. The permanent protection order was effectively undone and rescheduled for a full hearing. In the meantime, the temporary protection order remained in place, protecting Ms. Turner until she could present her evidence.

Restraining orders and Protection Orders should be taken seriously by both sides

If you are the victim of domestic abuse or stalking, don’t hesitate to request a protective order. You should consider talking with a lawyer at Helsper, McCarty and Rasmussen before court to learn what you need to do to get the permanent order. If you have been improperly accused of domestic violence or stalking, think twice before assuming that you will have the time and ability to defend the charge without a lawyer. Lawyers at Helsper McCarty and Rasmussen also help client defend against abusive protection orders.

]]>What looked like a straightforward traffic ticket ultimately destroyed a truck driver’s livelihood.On March 16, 2016, the South Dakota Supreme Court issued an opinion that should send an important message to CDL drivers everywhere.

Mr. Kaufman, a man with a Nebraska commercial drivers license (CDL), was arrested for DUI. He pleaded guilty and was sentenced. No one in court advised him that a DUI conviction would impact his Nebraska CDL. He lost his CDL for life. Although the SD Supreme Court likely empathized with how one mistake could destroy a man’s entire career, it simply lacked the jurisdiction (i.e. the power) to do anything to help him after the fact. Courts can not act without the legal power to do so. In this case, it was too late; the damage was done. There was nothing he could do about it anymore.

South Dakota has similar rules regarding CDLs. If you are convicted of a driving while under the influence charge, your CDL could be at risk. The legal limit in South Dakota is 0.08% blood alcohol content (BAC). If you have a CDL, it might be a good idea to visit with an attorney about your rights so that you know what to do before you are accused of DUI. Every citizen, guilty or innocent, has certain rights. Those rights should be fully understood and enjoyed by every truck driver. Livelihoods depend on it.

Be Proactive about your CDL

Do your homework. Know your rights. A lawyer can advise you what to do to minimize the risks associated with having a CDL before you’ve been pulled over. If your living depends on driving, it is extremely important to discuss any significant driving citations with an attorney. If you’ve already been cited, then you should weigh your options carefully. Helsper, McCarty and Rasmussen represents individuals, particularly those with CDLs, regarding DUI defense.

]]>Welcomehttp://lawinsd.com/welcome/
Mon, 15 Feb 2016 15:16:00 +0000http://lawinsd.com/wordpress/?p=1After a decade on 8th Street South, the law firm continues to grow and flourish. Don M. McCarty joined the firm as a partner in November of 2014, and Eric Rasmussen returns to the practice as a partner this coming April. Reed T. Mahlke joined the firm in 2009. Ben Kleinjan joined in 2012. Jennifer…

]]>After a decade on 8th Street South, the law firm continues to grow and flourish. Don M. McCarty joined the firm as a partner in November of 2014, and Eric Rasmussen returns to the practice as a partner this coming April. Reed T. Mahlke joined the firm in 2009. Ben Kleinjan joined in 2012. Jennifer Goldammer joined in November 2015. We are thrilled with our new office location above Dacotah Bank on Sixth Street.

In the coming months, look to this blog for news about the firm and our practice areas.